Lawyers representing Alabama citizens may file a lawsuit within days to preserve electronic images of every paper ballot cast in next week’s high-profile special U.S. Senate election between Democrat Doug Jones and Republican Roy Moore.

As of late Tuesday, the lawyers were still in talks with Alabama election officials, urging them not only to preserve all election records—a requirement under federal law—but to ensure the electronic scanners that will read and count the ink-marked paper ballots are properly programmed to capture the digital ballot images.

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“There are Alabama voters who have come forth seeking to enforce the federal requirement that all election materials be preserved for 22 months after the election,” said Chris Sautter, attorney for the Alabama voters. “It’s our understanding, having talked to state officials, that they preserve only the digital ballot images of the write-in ballots.”

“It’s clearly good election administration. My understanding is that this [image-capture] feature was created by an executive at ES&S [a voting machine maker], in part, to help facilitate recounts, and facilitate counting of ballots,” Sautter said. “So it’s a good device. It’s partisan neutral. It’s a feature that election officials should welcome.”

The special election for the Senate seat previously held by U.S. Attorney General Jeff Sessions has been rocked by accusations by many women that Roy Moore sexually harassed or assaulted them several decades ago. These disclosures have led to wild swings in pre-election polls, prompting Alabama voting rights advocates to take steps to ensure all the votes cast are accurately counted.

But it was not clear if Alabama state officials were instructing local election offices to properly program the scanners reading each paper ballot to save electronic images of those votes cast, so they would be retained in the machine’s memory after election night. That is one setting on many of the scanners; another is clearing the memory when they have tallied their results and are turned off.

Sautter said there are many reasons to preserve the electronic ballot images.

“There’s a number of reasons, aside from there’s a law that requires it,” he said. “That’s the first thing. These are election materials. So the law requires that they preserve all election materials. It’s not for the state to second-guess whether or not there’s a good reason to preserve, or not preserve, any type of election material. They have to preserve all of them. They can’t really pick and choose.”

“Secondly, as a practical matter, ballot images serve as a safety against mistakes, things that happen in elections,” he continued. “For example, citing outside of Alabama, I was one of the lead lawyers in the [Al] Franken-[Norm Coleman senatorial] recount [in Minnesota] and a bag of ballots were inexplicably lost in a precinct in Minneapolis. Had there been ballot images—this is relatively new technology, just in the last five or six years—election officials would have been able to go to the ballot images to determine what the actual count was. Instead, what they had to do was rely on the certified totals. And we know, having hand-counted 3 million ballots in Minneapolis, there were many, many good votes that were not detected by the optical-scan device.”

“Another example would be in Virginia four years ago, where 1,000 ballots were misplaced in Fairfax County, in a race that went to a recount for attorney general,” he continued. “They were ultimately found in machines that broke down on election night. But had they not been found, that precinct, or those precincts, could have been checked against the ballot images. So this looks to be a close election. There’s no way to know or predict whether it will be so close that it will warrant a recount, but at the very least, having ballot images will provide a safety in case there are problems locating ballots.”

Voting rights advocates have been in touch with State Election Director Ed Packard, Sautter said, where they learned that the state's many local election offices have not always preserved the electronic images of every ballot cast.

“I can say that’s true in the past,” he said, adding that he hoped that practice would not continue next week. “Discussions are going on today. I can’t say by the end of the day that they won’t conclude, ‘Well, you folks are right, and we intend to instruct all election officials to preserve all digital ballot images.’”

On the other hand, if no answer is forthcoming, or state officials cannot make that commitment, it is likely that Sautter’s legal team will file a suit within days to seek a court order by the week’s end.

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